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Dreaming of Effective Assistance: The Awakening of Cronic's Call to Presume Prejudice from Representational Absence

56 Pages Posted: 21 Feb 2007 Last revised: 13 Dec 2016

Keith Cunningham-Parmeter

Willamette University - College of Law

Date Written: 2003

Abstract

Most claims of ineffective assistance of counsel analyzed under Strickland v. Washington fail because defendants are unable to prove that they were prejudiced by defense counsel's deficient performance. Examining three federal appellate decisions involving lawyers who slept during trial, the article constructs a working test for presuming prejudice when a lawyer has been categorically non-functional. The test evolves from United States v. Cronic, which holds that prejudice to a defendant should be presumed when there has been a constructive denial of counsel. The article engages in a detailed investigation of several key terms from Cronic, including "constructive denial," "absence," and "meaningfully adversarial testing." Additionally, the article proposes several applications of the test to cases in which a defense lawyer remained silent throughout an entire trial or was affected by a severe mental disorder or drug impairment. In doing so, the article offers an original examination of Cronic, while defining a flexible, practical standard for evaluating claims of ineffectiveness based on representational absence.

Keywords: right to counsel, effective assistance, Strickland, Sixth Amendment, Cronic, sleeping lawyers

JEL Classification: K14

Suggested Citation

Cunningham-Parmeter, Keith, Dreaming of Effective Assistance: The Awakening of Cronic's Call to Presume Prejudice from Representational Absence (2003). Temple Law Review, Vol. 76, p. 827, 2003. Available at SSRN: https://ssrn.com/abstract=964238

Keith Cunningham-Parmeter (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States
(503) 370-6609 (Phone)

HOME PAGE: http://www.willamette.edu/wucl/faculty/profiles/cunningham/index.php

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